CALIFORNIA PERFORMANCE TEST (CPT) PROFESSOR PAVEL WONSOWICZ UCLA SCHOOL OF LAW CHAPTER 1: THE CPT A. Apprach What is the CPT? What methd is best t take the CPT? What types f analyses are tested? What writing methd shuld yu adpt? Hw d yu diagnse yur writing? B. What is the CPT? 1. Create a frm the materials given. Instructin sheet, task mem, fact file, law library 2. Skills tested 1. Reading cmprehensin (must read law and facts practively) 2. Organizatin 3. Cmmunicatin (adpt the prper ) 4. Ability t fllw directins 3. Purpse get thrugh the infrmatin but address nly that which is required in the task mem, in 90 minutes (45 minutes f analysis and 45 minutes f writing) Develp tests frm the statutry, case, and administrative materials Find the facts that apply t the tests t slve a client s prblem Cmmunicate effectively Wrk efficiently by fcusing n ne task at a time Gal: f yur time analyzing/synthesizing; f yur time writing CHAPTER 2: CPT METHOD A. Step #1: Instructin Sheet (1 minute) Read the instructin sheet
Nte: 1. The jurisdictin (a mythical jurisdictin) 2. The citatin frm (yu may abbreviate citatins and d nt need t include page numbers) 3. That yu must read all authrity as if it were B. Step #2: Task Mem (4-5 minutes) Read the Task Mem, fcusing n: 1. The pint f view ( r ) 2. The audience ( r ) 3. The gal and assignment Exam Tip 1: Lk fr headings cntained in the task mem. Exam Tip 2: Nte inclusins/exclusins t the assignment, such as whether yu need t write a statement f facts and whether yu need t write persuasive headers. If yu need t write a mem, think abut basing yur frmat ff f the Task Mem. Exam Tip 3: Yu may be asked t d a variety f tasks (such as writing a pleading, an pening statement, a cntract, a will, etc.). Dn t panic if yu get an unusual task. There shuld be an instructin page fllwing the task mem. C. Step #3: Library (20 minutes) Read the Library, starting with the law Start with statutes, the cases will illuminate part f the statute Cases start with the earliest Pay attentin t mandatry v. persuasive authrity Dn t ignre, qutes, r blck qutes D. Step #4: Write the Outline (10 minutes) Use the language f the statute t find the grey areas f law. Refer t the cases t reslve thse grey areas; ask, why is this case here? Nte hw cases intercept. Develp elements and factrs t decide the grey areas. Example 1: Statute prvides that IF a dcument is prepared in anticipatin f litigatin, THEN ne needs t prve substantial need and undue hardship in rder t btain access t the dcument. Cases reveal that substantial = relevant and Cases reveal that undue = n ther surces available Applicatin f fact t law reveals factrs that undue = n depsitin, incnsistent witness statements, passage f time 2 2017 Themis Bar Review, LLC Califrnia Perfrmance Test (CPT)
D nt ignre issues like the burden f prf and plicy E. Step #5: The File (10 minutes) Read the fact file, fcusing n finding key facts that prve (r disprve) the elements and factrs in yur wrking utline. Delete facts that may be irrelevant. Be aware that facts may cntradict each ther and may be incmplete. Characterize legal relatinships. Insert facts int utline next t element f factr they prve. Create an utline that indicates the rder f the arguments that yu will address. F. Step #6: Write (45 minutes) Pair relevant rules with relevant facts based n yur utline. Use frm if bjective and frm if persuasive. Fllw tne and tasks assigned. CHAPTER 3: TYPES OF ANALYSES; WRITING STRATEGIES; DIAGNOSIS A. What Types f Analyses? 1. Legal Analysis. The mst cmmn CPT. Usually persuasive, ften in mem/mtin frmat. Fllw IRAC, fcus nly n utcme-determinative facts. CA values persuasive headings. D nt ignre any client needs that arise. 2. Fact Gathering. Prve each element r factr thrugh dcumentary evidence. Lk fr the ultimate fact t be prven and divide it int elements. Be sure t write in paragraph frm (nt a list). D nt wrry abut admissibility unless tld therwise. 3. Deep Fact Analysis. Typically tested in a persuasive, lay-audience scenari such as a. The law tends t be relatively clear r undisputed. This tests yur verall thery f the case and hw yu wrk with facts. Examine the weaknesses f the ppnent. Yu may need t spend extra time with the fact file fr this type f analysis. 4. Prblem Slving. Think in terms f client s needs and expectatins. Yu are acting as a cunselr. The gal is t balance the client s needs. Califrnia Perfrmance Test (CPT) 2017 Themis Bar Review, LLC 3
5. Ethical Dilemmas. Often a sub-issue. Never ignre a cnflict-f-interest fact. Always err n the side f penness and ethical behavir. Suggest alternatives t ethical prblems. B. What Writing Strategies Shuld Yu Adpt? Adpt the crrect and. Synthesize and apply. Fcus n cncepts, nt cases. Be able t reduce a case t its cre,, and. Cmpare yur rule t the situatin. Keep factual summaries brief. Frm matters: Mem T, Frm, RE: Persuasive Brief captin, very brief fact sectin (unless tld therwise), signature line Opening/Clsing Ladies and Gentlemen f the Jury Discvery Plan depsitins, interrgatries, requests fr prductin f dcuments Letter addresses, intr paragraph, salutatin at the end Grammar and typs matter write in a lawyerlike matter. Persuasive headers If asked t write persuasive headings use: Under / When / Then. Make yur pints. Priritize finishing the exam ver elquence. Nte whether facts are r. Als nte whether facts are. Remember, wrking utlines are just fr yu. PRACTICE! C. Hw t Diagnse Yur Writing 1. Where are yu having prblems? Is it synthesis/rganizatin? (why is this case here) Is it the perfrmance f a sub-task? (priritize, check fr verwriting) Is it a type f prblem? (practice mre in that area) Is it timing? (practice, dividing tasks by time) 2. Mre specific diagnstic issues a. The shtgunner Thrwing everything n paper 4 2017 Themis Bar Review, LLC Califrnia Perfrmance Test (CPT)
T fix, wrk n yur. Break it dwn pint-by-pint with the mdel answer. b. The tangentializer Nt respnding t the questin, and either nt seeing the sub-issue r fcusing n irrelevant facts T fix, spend mre time with the mre clsely and spend time develping sub-issues. c. The bjectifier Nt paying attentin t bjective versus persuasive T fix, fcus n persuasive reasning. Lk at the Task Mem. d. The brainiac Ges utside the fur crners f the dcument T fix, fcus n the file f the PT. e. The stryteller Turns the PT int a lng, fact-intensive stry T fix, fcus n yur and map why a given case appears in a prblem. f. The legal mind Ignres T fix, fcus n linking an element t a fact. g. The ne-trick pny Tend t d wrse n ne type T fix, get used t perfrmance tests that make yu uncmfrtable. 3. Other tests and tips Try t figure ut why yur analysis is nt ging smthly (remember t be patient with yurself and keep practicing): 1) Cmparing yur wrking utline t the mdel answer 2) Practicing actual PTs 3) Cnsider ding half the test at a time and timing yurself fr each step in the prcess At a minimum, yu shuld d 4 8 PTs. Califrnia Perfrmance Test (CPT) 2017 Themis Bar Review, LLC 5
CHAPTER 4: IN RE HAMMOND LEGAL OUTLINE A. Instructin Sheet B. Assignment Mem Editr's Nte 1: This lecture chapter requires use f yur Themis MPT Bk, specifically, In re Hammnd, July 2010 MPT 1. Tne must be t a audience Draft Bdy f Argument nly multiple persuasive headings Fcus n: 1), and 2) Be faithful t ur bligatin t preserve client cnfidences err n the side f. C. Law Library 1. Franklin Rules f Prfessinal Cnduct Shall nt reveal inf regarding representatin Three exceptins: 1) Infrmed cnsent 2) Implied disclsure 3) Paragraph (b) reveal if injury t prperty f anther that is certain t result r has resulted frm crime/fraud where used lawyer s services 2. Franklin Rules f Evidence Elements: 1) Cnfidential 2) Cmmunicatin 3) Purpse f facilitating 4) Legal services Crime/fraud: If sught r btained t enable r aid an attempt t what the client shuld have knwn is crime/fraud Presumed ; ppsing party has BOP by POE; if ppsing party ffers sufficient evidence t raise substantial questin (prbable cause OR sme evidence, unclear in Franklin), must be disclsed t curt 6 2017 Themis Bar Review, LLC Califrnia Perfrmance Test (CPT)
3. Franklin Criminal Cde Arsn is building f anther Defrauding insurer requires intent t defraud 4. U.S. v. Rbb Federal/persuasive pr-prsecutin Lawyer testifies as t frmer client s intent Plicy: Oldest privilege; full and frank cmmunicatin; nly vilated when necessary Cunter: Lift veil f secrecy when purpse is t facilitate crime/fraud Need sme evidence and then admitted if POE that it fits crime/fraud Here sme evidence met: Midst f scheme, primary surce f advice, recrds prve miscnduct Mre cunter plicy: Dn t want t imprperly fraud 5. State v. Sawyer Clumbia/persuasive/mre recent pr-defendant Mere assertin need prbable cause, as it prtects cmmunicatins unless strng factual basis fr crime/fraud Here, inferences as t n crime/fraud are equally strng may have retained due t fear f prsecutin infrm chices CHAPTER 5: IN RE HAMMOND LEGAL OUTLINE WITH FACTS INSERTED A. Assignment/Task Mem Tne must be persuasive Audience will be legal Draft Bdy f Argument nly multiple persuasive headings Fcus n: Prfessinal cnduct, and Rules f evidence Be faithful t ur bligatin t preserve client cnfidences err n the side f nn-disclsure. In dire financial cnditin Appeared nervus Advised that if invlved in any way with fire, cannt cllect Tried t create DON T REVEAL these facts B. Library 1. Franklin Rules f Prfessinal Cnduct Shall nt reveal inf re: representatin Califrnia Perfrmance Test (CPT) 2017 Themis Bar Review, LLC 7
Cmmunicatins here cncerned representatin Three exceptins: Infrmed cnsent, Implied disclsure, OR Paragraph (b) First 2 dn t apply: client specifically requested that inf nt be revealed May reveal if substantial injury t prperty f anther that is reasnably certain t result r has resulted frm crime/fraud where used lawyer s services N here: dn t knw cause f fire, whether he caused fire, r whether he ll file fraudulent claim 2. Franklin Rules f Evidence Elements 1) Cnfidential 2) Cmmunicatin 3) Purpse f facilitating 4) Legal services All met: private cnversatin t explre financial/criminal aspects f fire Hammnd requested that Walker nt disclse cmmunicatins Crime/fraud: If sught r btained t enable r aid an attempt t what the client reasnably shuld have knwn is crime/fraud Has nt filed Nt guilty f arsn, as he N prf that client attrney fr crime/fraud, as may have feared criminal charges against him Presumed privileged; ppsing party has BOP by POE; if ppsing party ffers sufficient evidence t raise substantial questin (prbable cause OR sme evidence, unclear in Franklin), must be disclsed t curt Prf f crime: insured a building that burned dwn due t suspicius rigin; inquired int filing insurance claim; bank lan turned dwn befre fire; failed alibi 3. Franklin Criminal Cde Arsn is building f anther Nt guilty f arsn, as he wns building Defrauding insurer requires intent t defraud 8 2017 Themis Bar Review, LLC Califrnia Perfrmance Test (CPT)
Has nt filed claim 4. U.S. v. Rbb Federal/persuasive pr-prsecutin Lawyer testifies as t frmer client s intent Plicy: Oldest privilege; full and frank cmmunicatin; nly when necessary Plicy supprts ur client: needed full and frank cmmunicatin t deal with pssible criminal charges Cunter: Lift veil f secrecy when purpse is t facilitate crime/fraud Need sme evidence and then admitted if POE that it fits crime/fraud Here sme evidence met: Midst f scheme, primary surce f advice, recrds prve miscnduct Distinguishable: didn t need a lawyer s help with alleged fraudulent scheme Fraudulent scheme hasn t cme t fruitin, as n filing Nt even sure if fire was intentinally caused by client Mre cunter plicy: Dn t want t imprperly clak 5. State v. Sawyer Clumbia/persuasive/mre recent pr-defendant Mere assertin insufficient need prbable cause, as it prtects cmmunicatins unless strng factual basis fr crime/fraud Hammnd s cmmunicatins need t be prtected, as he was seeking attrney s advice as ptential target f criminal investigatin thus higher prbable cause standard apprpriate Dn t want t hurt attrney/client relatinship Here, inferences as t n crime/fraud are equally strng may have retained due t fear f prsecutin infrm chices Analgus: retained t due t fear f arsn charges Dn t need t retain an attrney t cmmit this type f fraud, as merely need t file insurance paperwrk; thus, didn t btain services f attrney fr crime/fraud Sught frms befre hired attrney C. Attack Outline FRE desn t supprt (Nte: because bth cases discuss the FRE, discuss it first; then, mve t the smaller argument (discussed by nly ne case) if yu have time. Overview f law; presumed privileged; meets elements Adpt prbable cause standard (meets plicy; similar t Sawyer) Under prbable cause, n evidence this was crime/fraud r sught cunsel t further crime/fraud Califrnia Perfrmance Test (CPT) 2017 Themis Bar Review, LLC 9
Even under sme evidence standard, prsecutr cannt meet burden (distinguishable frm Rbb) Rules f Prfessinal Cnduct desn t supprt Overview f law N CHAPTER 6: PHOENIX CORPORATION V. BIOGENESIS, INC. A. Instructin Sheet B. Legal Outline Editr's Nte 2: This lecture chapter requires use f yur Themis MPT Bk, specifically, Phenix Crpratin v. Bigenesis, Inc., February 2009 MPT 1. Assignment Mem: Tne: N statement f facts C. Library 1. Rule 4.4 f FPC adpted in 2002 Audience: IF attrney, receives, dcument relating t representatin, knws/reasnably shuld knw, sent inadvertently THEN prmptly Cmment 1: Respnse t Indig; must be Cmment 2: Indig (ntify, dn t examine, await sender s instructin) nt adpted must just Cmment 3: Rule desn t apply t disclsure withut ; Mead gives rule (review, ntify, abide r refrain until curt instructin), but curt desn t create rule 2. Indig v. Luna Mtrs Franklin, 1998, pr-party seeking Attrney disqualified re: dc when examined it, failed t ntify, used t impeach, refused t return Klein case: Disqualificatin is inherent pwer fcusing n ethical standards paramunt cncern is public trust in justice/integrity When privileged dc clearly inadvertently sent, shuld refrain/ntify/await instructin here, cunsel failed t d s Disqualificatin prper if incurable prejudice (Klein) in Indig, btained damaging admissins, can capitalize n cntents at trial, and can perhaps btain similar evidence (turn this case int that we can apply t ur case). 10 2017 Themis Bar Review, LLC Califrnia Perfrmance Test (CPT)
3. Mead v. Cnley Machinery C. Franklin, 1999, pr-party NOT seeking disqualificatin N authrizatin case (nt an inadvertent disclsure case) Can disqualify if n rule vilatin interests f justice, including guarantee fair trial Plicy: attrney/client privilege encurages fully develped cases If receives and knws, shuld limit review t determining hw t prceed, ntify, abide r refrain until curt instructin Six factrs fr disqualificatin: 1) Knwledge f privilege 2) Prmptness f ntice 3) Extent f review 4) Significance/curing prejudice 5) Oppsing party s fault 6) Oppsing party prejudice via disqualificatin Fn 1: Incurable prejudice is neither nr fr disqualificatin In Mead, n prejudice (can exclude), harm frm cunsel s knwledge is speculative, and high prejudice fr ppsing party t lse cunsel wh develped trial strategy D. Legal Outline with Facts Inserted Assignment Mem: Tne: Objective Audience: Legal Objective mem withut statement f facts 1. Rule 4.4 f FPC adpted in 2002 IF attrney, receives, dc relating t representatin, knws/reasnably shuld knw, sent inadvertently Client cncedes it received a privilege letter But, des nt cncede receipt was THEN prmptly ntify sender Did nt, but did nt get much chance t, as ppnent fund ut same day at lunch seems culd still have given prmpt ntice that day Cmment 1: Respnse t Indig; must be mistaken/inadvertent, attrney/client privilege irrelevant Cmment 2: Indig (ntify, dn t examine, await sender s instructin) nt adpted must just ntify Califrnia Perfrmance Test (CPT) 2017 Themis Bar Review, LLC 11
Cmment 3: Rule desn t apply t disclsure withut authrizatin; Mead gives rule (review, ntify, abide r refrain until curt instructin), but curt desn t create rule Because this is an authrizatin case, 4.4 address this issue Is curt implying n rule, r rule in Mead is OK? 2. Indig v. Luna Mtrs Franklin, 1998, pr-party seeking disqualificatin Attrney disqualified re: inadvertent dc when examined it, failed t ntify, used t impeach, refused t return Klein case: Disqualificatin is inherent pwer fcusing n ethical standards paramunt cncern is public trust in justice/integrity When privileged dc clearly inadvertently sent, shuld refrain/ntify/await instructin here, cunsel failed t d s Our case is an authrizatin case and 4.4 didn t adpt Disqualificatin prper if incurable prejudice (Klein) in Indig, btained damaging admissins, can capitalize n cntents at trial, and can perhaps btain similar evidence (turn this case int factrs that we can apply t ur case). 3. Mead v. Cnley Machinery C. Franklin, 1999, pr-party NOT seeking disqualificatin N authrizatin case (nt an inadvertent disclsure case) Is case still valid if curt declined t adpt a rule in this cntext? Or, was curt satisfied with Mead rule s didn t adpt a different rule? Can disqualify if n rule vilatin interests f justice, including guarantee fair trial S, ethical vilatin is nt, must still address Here, fair trial can ccur, as curt can exclude letter, and n ethical vilatin means limited damage t interests f justice Plicy: attrney/client privilege encurages fully develped cases If receives and knws, shuld limit review t determining hw t prceed, ntify, abide r refrain until curt instructin Reviewed the shrt letter, didn t have much chance t ntify (few hurs?), refused t return (but can refrain until curt instructin) Six factrs fr disqualificatin: 1) Knwledge f privilege 2) Prmptness f ntice 3) Extent f review 12 2017 Themis Bar Review, LLC Califrnia Perfrmance Test (CPT)
4) Significance/curing prejudice 5) Oppsing party s fault 6) Oppsing party prejudice via disqualificatin Fn 1: Incurable prejudice is neither necessary nr sufficient fr disqualificatin In Mead, n prejudice (can exclude), harm frm cunsel s knwledge is speculative, and high prejudice fr ppsing party t lse cunsel wh develped trial strategy Against: We knew (1), didn t ntify (2) (but minimal time t ntify), reviewed (3) (but shrt letter), and ppnent nt at fault (5) Fr: But, under (4) minimal significance and can be cured by excluding we didn t use this infrmatin yet in depsitin and harm is Fr: Under (6), huge prejudice six years f prep, trial in a mnth, cunsel develped trial strategy, tremendus csts t client factrs in ur favr, factrs against us E. Attack Outline Mem frmat Fllw ppnent s frmat? Structure: 1) Cncede it s prtected 2) N ethical vilatin under rule (nt inadvertent), Indig (distinguishable and 4.4 didn t adpt), and Mead (we fllwed its mandates and may nt be gd law) 3) N disqualificatin, as ur 2 factrs utweigh their 4 [END OF HANDOUT] Califrnia Perfrmance Test (CPT) 2017 Themis Bar Review, LLC 13
14 2017 Themis Bar Review, LLC Califrnia Perfrmance Test (CPT)